Detailed Explanation

Ben or Abe implicates numerous laws, we will focus upon the following four.

1. If an article appears as though it fell in its place, "providing the finder with the correct position" bears no indication of ownership thereof. [See Background below] Thus, describing  the unique positioning only serves an identifying feature when it is clear that the owner intentionally placed the article in an unexpected position [Choshen Mishpat 262: 3].

2. Generally, loose money is standard and has no unique identifying features [Choshen Mishpat 262: 6, 11, 13].

3. Money found in a store on the customers' side of the checkout counter is not assumed to belong to the store [Choshen Mishpat 260:5].

4. We noted [See issue 51]that the finder is strongly encouraged to follow the "noble rout" of being "straight and good" [Devarim 6: 18] and return an article to its original owner even after he or she despaired. However, this rule does not apply to an unidentifiable object [Choshen Mishpat 259: 5]. One is not acting "straight and good", by returning an article to an individual who cannot prove his or her original ownership thereof.

Background:

 [Adapted from Issues 50, 51 for our New Subscribers; as well as a for a  review for our seasoned readers.]

Upon finding a "lost article", one confronts the following dilemma, "Should the finder 1) leave the article be, 2) safeguard the article, responsibly attempt to identify the rightful owner and then inform the owner of its whereabouts, or 3) is the finder permitted to keep it?"

Safeguarding etc, the article when called for, the finder fulfills the Mitzvah of Hashavat Aveidah and avoids transgressing the negative prohibition of ignoring a fellow's potential financial loss [See Issue 49]. Keeping the article inappropriately, can be a form of theft [Choshen Mishpat 259:1] and taking the article away inappropriately can cause the owner unnecessary loss [Choshen Mishpat 260:9]. It is thus imperative to familiarize oneself with the simple process of ascertaining the proper response thereof.

What elements must the finder consider in order to be equipped to respond appropriately?

Determining the mindset of the loser vis-à-vis retrieving the article is generally the most crucial factor in establishing whether the owner retains full ownership of the article thereof or otherwise legitimately allows others to obtain it should they wish to do so [Bava Metzia Chapter II, Choshen Mishpat  259].
 
In other words, the owner may entertain a reasonable prospect of retrieving the article and therefore object to the finder keeping the article. Conversely, the owner might rationalize that the article will remain irretrievable, thereby consciously or subconsciously allowing others to keep their find [Tosafos Bava Kama 66a, Nesivos Hamishpat 259]. 

There are generally three steps to processing this equation.
I. An essential element of the equation begins by attempting to ascertain if the loser had sufficient time to discover the loss.  So long as the owner did not discover the loss, there can be no conscious or subconscious decision to permit others to acquire the article. Hence, generally, as long as the original owner is not privy to the loss, the finder may not keep the find [Bava Metzia 21b, Choshen Mishpat 262:3].

II) III) once the finder ascertains that the loser had sufficient time to discover the loss, the finder must consider whether the circumstances surrounding the loss prompt the loser to despair from ever retrieving the article, or can we determine that the loser still hopes to recover the article. So long as the loser did not yet despair, the finder may not keep the article [Choshen Mishpat 259:1].

[Note: See next week's issue regarding situations of sure losses like articles being washed away by tidal waves, which are subject to different guidelines.]

Various factors account for considerable prospects of recovery whereby the loser remains reasonably hopeful of retrieval.  Such factors in place, the finder may not keep the find.

Factors include: I 1) Environment

                          II 2) Unique identifying features and 3) Unique positioning
 
Environment: Losing an article amidst a society attentive to Hashavat Aveidah laws provides the owner with hope of recovery. Yet, the owner can only hope to retrieve it if he or she can expect the finder to notice unique identifying features thereof.  (Similarly, the finder may only return the object to one who produces the correct identifying features, lest the article land up in the wrong hands [Choshen Mishpat 267].)
 
Unique identifying features include unique size, shape, color, quantity, weight, and packaging to name a few [Choshen Mishpat 259:2, 262:6]. Thus, finding a non-standard article amidst a society of Hashavat Aveidah observers would require the finder to safeguard the article, responsibly attempt to identify the rightful owner and then inform the owner of its whereabouts[Choshen Mishpat 259:3, 262:3].
 
Unique positioning only serves an identifying feature when it is clear that the owner intentionally placed the article in an unexpected position.  Otherwise, the unidentifiable object remains without a medium for the original owner to prove ownership thereof [Choshen Mishpat 262:3].

♦

Application:

The hundred-dollar bill fell on the customers' side of the checkout counter. It does not belong to the store. The bill had no identifying features. As it was clear that no one placed it on the floor, its position will not serve as an identifying feature. Ben may keep his find. Even after Abe arrives, Abe lacks a legal means of proving that the bill Ben found was the one that fell from his hands. The bill could have fallen from another person as well. Certainly, though if circumstantial evidence points in favor of Abe, Ben could choose to act graciously and benevolently and give the bill to Abe, but the bill legally belongs to Ben.